Terms and Conditions
1. Scope, General
These Terms and Conditions (T&C) apply to all current and future legal actions as part of any business relationship between ViMP GmbH (hereinafter "ViMP"), and its business partner (hereinafter "Customer"). Additional T&C s provided by the Customer shall not be allowed without explicit consents in writing from ViMP. Customer’s reference to its own Terms and Conditions, possibly attached to this T&C or served as a supplement contract, shall not be construed as ViMP’s consent to the applicability of the Customer’s T&C. To have any legally binding effect, Customer’s T&C s shall always be additionally signed by ViMP.
We basically only approve a contractual obligation when the type and range of a service and service remuneration have been set down by both sides in writing. Later oral amendments and supplements will only be effective if they are subsequently confirmed in writing. The same will apply to all declarations, in particular complaints, reminders and notices of defect in terms of the contractual relations.
2. Supply of Software
ViMP, on its behalf as the legal owner, transfers the non-further-transferable and non-exclusive right to the customer to use the software and any documentation as specified in the order or invoice documents over an indefinite time.
The contractual use is defined as: Reading instructions or data of a program on a computer and/or server/webserver, through transmission of data-blocks or data on a medium into the agreed hardware for the purpose of processing and production of a machine-readable copy for data backup.
3. Property Right of Third Party
ViMP exempts the Customer from all claims which are raised against the Customer in connection with the use of the software related to breach of copyrights, patents or other intellectual property rights, provided that the customer immediately informs ViMP of any raised violation claim, that the Customer recognizes no such claims without the consent of the ViMP, that the Customer approves ViMP of directing all negotiations and procedures and gives the ViMP the necessary support, whereby all costs related to such a lawsuit are debited to ViMP.
The preceding stipulation is waived if the legal violation of copyright and patent violation or other legal damages are related to the software (or parts of it) being used on/with device(s) or program(s) not provided by the ViMP, or rather, because the combined use of the software and those device(s) or program(s) has not been approved. The preceding provisions govern the entire liability of ViMP in connection with the violation of copyrights, patents or other intellectual property rights.
In the event of claims already raised or to be expected because of a breach of copyright, patent rights and other intellectual property rights, ViMP reserves the right to change or replace the device(s) or program(s) at its own expense, in order to prevent a violation. The service scope of the software system delivered by ViMP shall thus not be reduced.
4. Usage Rights
The intellectual property (copyright, trademark rights, patent rights, or other proprietary rights of use etc) remains – unless expressly agreed otherwise in writing - always with ViMP. Generally, the business partner’s additional rights – if provided – are agreed to be not transferable and not exclusive, unless otherwise agreed in writing. In particular, the business partner is not allowed to rent, loan, lease, or sell the product or parts thereof, or in whatever technical procedure, make the product entirely or partly accessible to third parties without the express written consent of ViMP. Sublicensing may not be granted.
Change of the program’s source code is only allowed with the prior written consent of ViMP. The consent can only be denied for good reason.
If the Customer or a third party makes use of programs that have been altered or that were not provided by ViMP and by doing so affect the function of the system, ViMP is not liable for any resulting damages. A release of the source code requires an explicit written agreement on the nature and extent of the release, as well as an additional compensation.
For the production and use of the software for an indefinite period, the customer shall pay a one-time licensing fee. The amount of the licensing fee is based on the current price list or on the separate agreements according to order or invoice.
The services are billed at 50% upon the contract completion (after the contract has been signed by the Customer), and 50% on the due delivery and acceptance. All other payments calculated on this contract are payable upon delivery. Unless otherwise agreed, the Customer shall make the payments immediately to a bank account of ViMP.
If Customer’s payment(s) are delayed for more than 30 days, ViMP is entitled to add an interest rate of 5% above the applicable base rate p. A. to the due amount.
6. Confidentiality on Customer’s Part
The licensed programs as well as the documentation materials shall be neither entirely nor partly made accessible for a third party of possible abuse. The customer shall keep all programs, documentations, business documents and program-knowledge under confidentiality from outsiders. This applies only to those documents that have been made available to the Customer to fulfill this contract, but not to advertisements and their contents. The Customer shall hold its staff obligated to a corresponding confidentiality. This confidentiality obligation shall remain in effect even after the duration of the contract period, no matter whether the contractual relationship would be cancelled for some reason before its due expiration. The obligation also includes a ban on publication of excerpt-like materials or citations. An exemption from this confidentiality agreement requires the prior written consent of ViMP. The customer agrees to compensate ViMP for any damages caused by a violation of the preceding terms, due to gross negligence in the maximum amount of the license fee (or the invoice value), except for deliberate action.
ViMP is entitled to refer the customer as well as the use of the provided software services in advertising and/or public relation campaigns.
The customer is only entitled to terminate this contract because of a delay in service provision on the part of ViMP or because of non-remediable defects, if ViMP did not comply with its obligations and if the Customer has issued a formal warning to ViMP in writing in advance and a reasonable period has passed, during which the alleged contract breach has not been removed (see acceptance / warranty).
8. Amendment Request
As long as the software has not yet been delivered by the ViMP, the customer can always request an amendment in requirements in writing if the requested amendment is reasonable in respect to the overall contract and is based on objective considerations. ViMP will follow such amendment request, unless the amendment is infeasible due to ViMPs current operational situation.
In case such a change requested by the customer leads to the contractual balance for performance and compensation being more than negligible affected, the contracting parties shall immediately draft a written adaptation of the contractual arrangements concerning the main contract elements (especially payment, delivery date, etc.).
9. Delivery, Acceptance, Warranty, Liability, Confidentiality and Privacy
Delivery dates and deadlines are generally non-binding guidance in time, unless they are explicitly agreed in writing as being fixed dates.
A standard version of the software will be offered for installation. An expansion or adjustment of the standard software can only be made with explicit written specifications being part of the contract. The installation is to be coordinated with the customer. After the contract has been signed the Customer will immediately point out a person responsible for supervising the installation in written form.
Immediately after the contract has been signed, the Customer will hand over all documents to ViMP that ViMP requires to find out the current configuration of the customer's existing hardware / operating system platforms. If ViMP finds that the configuration has to be changed, such changes shall be made at expense and risk of the Customer before the software will be installed. The customer is required to provide any cooperation necessary in order to implement the software. This includes in particular the facilitation of access to the hardware, and the free provision of test data and computation time in accordance with the requirements of ViMP and the free provision of a competent employee to run all necessary tests and to check all adjustments.
ViMP can only ensure stable operation of the software on those hardware systems that have previously been approved by ViMP. The approval is granted as the program installation is done on the Customer’s hardware system by ViMP.
10. Acceptance and Warranty
After installation and testing, ViMP shall inform the customer in writing that all extended and/or customized parts added to the standard version of the software are fully functional, and thereby requests its acceptance from the Customer. The customer can then test the software. In the event that acceptance capability exists, the customer shall immediately, or within no more than 10 days after the written notice from ViMP has been received, inform ViMP of the acceptance in writing. However, in case of no acceptance due-diligence done by the Customer within that period, the acceptance shall be regarded as done (accepted). This acceptance period starts as soon as the notification letter has been received by the Customer. If the customer pays the remuneration without objection after implementation of the supplied software, this equals an acceptance of the software. The acceptance must not be declined due to the presence of minor defects.
Liability for a certain function/condition can only be accepted if it has been agreed upon expressly in writing. ViMP hereby points out that it is not possible to provide software completely free of error on the basis of the state of the art. If an error in the software arises in the context of a liability agreement, the customer is obligated to inform ViMP of that error in writing within two weeks. As part of this written notification of a defect, the defect and its manifestation shall be described so exactly that an examination of the defect is feasible (e.g. submission of error messages) and the exclusion of an operating error (e.g. description of the work procedures) is possible. The return of the software because of an insignificant lack is not possible. If the defect notified by the Customer proves as justified, the Customer shall set an appropriate period for ViMP to provide after-sale service. The Customer informs ViMP which kind of after-sale service to provide - improvement of the supplied software or supply of new and faultless software. ViMP, however, has the right to refuse the selected after-sale service if this could only be accomplished with disproportional costs and if another kind of after-sale service would not bring substantial disadvantages to the customer.
11. Limitations of Legal Liabilities and Statute of Limitation
ViMP is liable to intent and gross negligence in accordance with statutory provisions. For slight negligence, ViMP is only liable if a major contractual duty (cardinal requirement) is violated, or in a case of delay or impossibility. In the case of a liability to a slight negligence, the liable is limited to such damages, which are typical or predictable. This limitation of liability applies to the liability to slight negligence even in the case of an initial inability on the part of ViMP. Liability for the absence of guaranteed features because of deceitfulness, harm to persons, defects of title according to the product liability law remain intact.
In case ViMP is to be made liable, a contributory negligence on part of the Customer shall be adequately taken into consideration, especially when it comes to insufficiently documented error messages or failure to create data-backups on a regular basis. A lack of backup-data can be caused especially if the Customer did not use an appropriate state-of-the-art backup-system to protect the data against external influences such as computer viruses or similar phenomena, which can harm individual data or the entire data storage. The statute of limitation for an inessential breach of contract is herby limited to 2 years.
12. Confidentiality and Privacy
ViMP and the Customer mutually agree to keep any corporate- and trade secrets of the other side secret for an indefinite time, and not to pass them on to a third party or exploit them in any way. The documents, drawings, and other information that the business associate receives due to this business relationship are only to be used within the framework of the individual contractual purpose. The Customer is obligated to mark all confidential information with the word "Confidential".
All our business relationships with our Customers are exclusively subject to the laws of the Federal Republic of Germany. If this law should refer to foreign jurisdictions, such references are ineffective. The application of the UN Sales Law (UNCITRAL) is explicitly excluded.
The place of performance for supplies and services is the place which has been contractually agreed as being the place of performance, in doubt this place is Munich. The place of performance for payments is the place which the bill shows as domicile. The place of jurisdiction for both parties is Munich.
In case any part of this Contract is not valid, this does not affect the other (remaining) parts of the Contract. Ineffective, invalid or futile regulations (if any) will be replaced by such regulations, which's meaning and contents are similar the most to the economical intentions of the original ones.